PATRICIA TIBBS v. MIKE TIBBS
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RENDERED: November 21, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001690-MR
PATRICIA TIBBS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 01-CI-00966
v.
MIKE TIBBS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BAKER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Patricia Tibbs has appealed from the findings
of fact, conclusions of law, and decree of dissolution of
marriage entered by the Warren Circuit Court on May 23, 2002,
which awarded joint custody to her and her former husband, Mike
Tibbs, and designated Mike as the primary residential custodian
of Austin and Haley Tibbs.
Having concluded that the family
court made appropriate findings of fact and that it did not
abuse its discretion by designating Mike as the primary
residential custodian, we affirm.
Mike and Patricia were married in Warren County,
Kentucky, on August 7, 1993.
The marriage produced two
children, Austin, who was born on August 6, 1995, and Haley, who
was born on July 20, 1998.
Mike and Patricia separated on May
15, 2001, however, they both continued to reside in the marital
residence located in Oakland, Warren County, Kentucky, until
August 2001.
On July 31, 2001, Mike filed a petition for
dissolution of the marriage and a motion for temporary joint
custody and exclusive possession of the marital residence.
Mike
also filed a petition for an emergency protective order against
Patricia.
On August 1, 2001, Patricia was forced to vacate the
marital residence,1 and she moved in with her mother.
Austin and
Haley continued to reside with their father at the marital
residence.
On August 13, 2001, the family court dismissed
Mike’s petition for an emergency protective order after holding
a hearing on the issue pursuant to KRS 403.745.
On August 24, 2001, an agreed visitation order was
entered into between the parties stipulating that Patricia was
entitled to visitation with her children on Thursday evenings
and alternating weekends during the pendency of the custody
1
See Kentucky Revised Statutes (KRS) 403.740(1)(d).
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proceedings.
In September 2001 Patricia moved into a two-
bedroom apartment in Bowling Green, Kentucky, where she
currently resides.
On September 24, 2001, Patricia filed a
motion for temporary maintenance, but she never filed a motion
for temporary custody of the children.
During the pendency of
this action, the children continued to reside with their father
at the marital residence.
A trial was held on January 9, 2002, and March 27,
2002, for the purpose of addressing numerous issues pertaining
to the divorce.
Mike and Patricia both agreed that a joint
custody arrangement was in the best interests of their children,
however, they disagreed as to who should be designated as the
primary residential custodian.
Several witnesses testified on
behalf of both parties concerning the custody issue.
At the
conclusion of the trial on March 27, 2002, the family court
awarded Mike and Patricia joint custody of their two minor
children and designated Mike as the primary residential
custodian.
In setting forth the parameters of the joint custody
arrangement, the family court noted that Mike’s status as the
primary residential custodian did not constitute a controlling
or superior right in relation to Patricia’s parenting rights.
In closing, the family court acknowledged Mike’s concern that
Patricia was engaged in a lesbian relationship, however, the
family court concluded that Mike had failed to introduce any
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“factual proof” suggesting that Patricia was involved in such a
relationship.
Consequently, the family court declined to make
any findings in respect to this issue.
On May 23, 2002, the family court entered a decree of
dissolution of marriage along with findings of fact and
conclusions of law concerning, among other things, the joint
custody award and the primary residential custodian
determination.
The decree of dissolution states, in relevant
part, as follows:
The court has considered both parties’
request for a joint custody relationship
with their two children. Having considered
all evidence and testimony presented the
court concludes that there shall be a joint
custody arrangement of the parties’ two
children with [Mike] being designated as
their residential custodian.
. . .
[Patricia] shall receive her rights of
joint custody in accordance with the
schedule for non-residential custodians
adopted by this court . . . with the
exception that when [Mike] is scheduled to
work a 24 hour shift on a Friday, Saturday,
or Sunday, that otherwise falls on [Mike’s]
weekend of exercise of joint custody, then
on such occasions, [Patricia] may make
arrangements to pick up the children from
the daycare provider of such children after
the children have finished school, assuming
this falls on a Friday, or after she gets
off work, and keep the children with [her]
until [Mike] gets off from work and makes
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arrangements to pick the children up from
[her].2
On June 3, 2002, Patricia filed a motion to alter,
amend, or vacate the family court’s determination that Mike was
to be the primary residential custodian of the children.3
Patricia also filed an alternative motion pursuant to CR 52.02
requesting the family court to enter specific findings
concerning its determination that Mike was to be the primary
residential custodian of the children.
On July 9, 2002, the
family court entered an order amending the decree of dissolution
entered on May 23, 2003, and denying Patricia’s motion to alter,
amend, or vacate.
The family court’s order states, in relevant
part, as follows:
The Decree of Dissolution of Marriage
which incorporated the Custody Decree was
entered by this Court on May 23, 2002. The
Decree designated the father, Mike Tibbs, to
be the parent who would maintain the primary
residence of the parties’ two minor
children. This designation was made after
due consideration of all facts and evidence
presented at the trial and in the best
interest of the children. More
specifically, the Court intends to allow the
children to maintain their residence at the
residence where they have grown accustomed
avoiding the need for the children to have
to move from place to place while the
mother, Patricia Tibbs, stabilizes her
living arrangements. Both parents are
deemed to be fit and proper parents for the
two children and should continue with the
2
Mike is employed as a firefighter with the Bowling Green Fire Department.
3
See Kentucky Rules of Civil Procedure (CR) 59.05.
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joint parenting plan as established by the
Decree provided the restrictions set forth
[therein] are maintained. Any reference to
the word “visitation” [contained in] the
Decree shall be amended and substituted with
the phrase “joint custodian time,” this
revision should assist the parties in
understanding that this is a coparenting/joint custody arrangement
[emphasis original].
This appeal followed.
Patricia raises two issues on appeal.
First, Patricia
contends the family court erred by failing to make specific
findings concerning its designation of Mike as the primary
residential custodian of the children.
Second, Patricia claims
the family court abused its discretion by “relying upon unproven
allegations [of] lesbianism” in designating Mike as the primary
residential custodian.
In McFarland v. McFarland,4 this Court held that
pursuant to CR 52.01 a trial court is required to set forth
specific findings in accordance with the factors enumerated in
KRS 403.270(1) when making a custody determination.5
As
previously discussed, the family court in the case sub judice
approved of Mike and Patricia’s suggestion that they be awarded
joint custody of their two minor children.
Thus, Patricia does
not contend that the family court failed to make specific
4
Ky.App., 804 S.W.2d 17 (1991).
5
Id. at 18.
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findings concerning its award of joint custody, but she does
take issue with the family court’s designation of Mike as the
primary residential custodian.
In Fenwick v. Fenwick,6 the Supreme Court of Kentucky
defined the term “primary residential custodian” as it applies
to joint custody arrangements.
The Court noted that the term
“primary residential custodian” is generally used to “refer to
the party with whom the child will primarily reside.”7
The Court
explained that unless the parties or the court elect otherwise,
“designating a party as the primary residential custodian
logically confers on that party: (1) the primary role in minor
day-to-day decisions concerning the child; (2) the
responsibility for providing a residence, i.e., a ‘home base,’
for the child, and (3) the normal routine care and control of
the child.”8
The Court further noted that a trial court “must
again consider the child’s best interests in connection with its
decision to designate one of the parties as the primary
residential custodian.”9
The family court in the case sub judice clearly
considered Austin and Haley’s best interests in designating Mike
6
Ky., 114 S.W.3d 767 (2003).
7
Id. at 779.
8
Id.
9
Id.
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as the primary residential custodian.
As previously discussed,
in its order dated July 9, 2002, the family court concluded that
it was in “the best interests of the children . . . to maintain
their residence at the residence where they have grown
accustomed avoiding the need for the children to have to move
from place to place while [Patricia] stabilizes her living
arrangements.”
Patricia testified at trial that Stacy Lingar
and her daughter, Jordan, spent the night at her two-bedroom
apartment once or twice a week.
Patricia further testified that
on occasion she spent the night at Lingar’s apartment, which is
located in the same apartment complex.
In addition, Patricia
testified that if she were designated as the primary residential
custodian she intended to transfer the children to a different
school district, closer to her apartment.
Certainly, a child’s
adjustment to his or her home, school, and community is a
relevant factor which should be taken into consideration when
determining which parent is to be designated as the primary
residential custodian.10
Clearly, the evidence presented at
trial supports the family court’s determination that Mike was
able to provide the children with a more stable home
environment.
Consequently, we conclude that the family court’s
factual findings on this issue were sufficient.
10
See, e.g., KRS 403.270(1)(d).
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Patricia next argues that the family court abused its
discretion by “relying upon unproven allegations [of]
lesbianism” in designating Mike as the primary residential
custodian.
We find no merit to this contention.
As previously
discussed, the family court specifically declined to make any
findings concerning this issue.
In fact, the family court
concluded that Mike had failed to introduce any “factual proof”
suggesting that Patricia was involved in such a relationship.
The record does not support Patricia’s claim that the family
court relied upon any allegations of lesbianism in designating
Mike as the primary residential custodian.
Based upon the foregoing reasons, the findings of
fact, conclusions of law, and decree of dissolution of marriage
entered by the Warren Circuit Court on May 23, 2002, as amended
on July 9, 2002, are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
D. Bailey Walton
Bowling Green, Kentucky
Kenneth A. Meredith, II
Bowling Green, Kentucky
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